By Cory Bilton

Is a fetus a “patient”?  Normally, a question like this would signal the opening salvo of a discussion about abortion.  But here it’s leading to a discussion about what happens when a fetus is negligently injured by a Virginia doctor.   You might naturally find yourself falling into one of two schools of thought on the issue.  Either, (a) the fetus is just part of the mother and therefore not a separate “patient” from the mother, or (b) the fetus is a distinct entity from the mother and is a completely separate “patient”.

The Virginia Supreme Court recently faced this exact question in the case of Simpson v. Roberts.  In Solomonic fashion, the court’s majority split the legal baby: the fetus is a “patient” if it is later born alive, but if it dies before birth, then it’s not a separate “patient” from its mother.  Prior to either birth or death in the womb, there is no clear answer to whether a fetus is a “patient”.

The facts of the case involved a child, Marissa Simpson, who as a fetus was injured by a doctor trying to perform an amniocentesis.  The court’s opinion indicates that Marissa is here with us today, but the damage to her by the failed amniocentesis caused her to be born with cerebral palsy and damaged kidneys.  In other, somewhat similar cases the court had decided, the doctor that caused the damage to the fetus also treated the child after birth.  When such care continues from fetus to live birth, it’s not a stretch to say that the live baby is the doctor’s “patient”, so when the baby was a fetus it was also the doctor’s “patient”.  But in Marissa’s case, it was more complicated, because Dr. Roberts sole interaction with Marissa was during the botched amniocentesis while she was still a fetus.  Dr. Roberts never again treated Marissa or her mother.

The Simpson opinion says that the fact that the doctor never treated, nor intended to treat, Marissa after her birth makes no difference in the legal analysis.  Marissa became a “patient” when she was born alive.  The question of whether Marissa can hold Dr. Roberts liable for the injuries he caused is then just a question of whether, as a “patient”, she could have maintained a personal injury action against Dr. Roberts?  The court says yes, Marissa can.

In case you missed the tense shift, I’ll restate: the court’s reasoning is that even though the fetus is not a “patient” until birth, once born, a child is a “patient” and can retroactively use that status to make a claim against the doctor for her injuries.

Why do I keep putting “patient” in quotes?  For the purposes of medical malpractice claims, Virginia specifically defines the word patient as: “[A]ny natural person who receives or should have received health care from a licensed health care provider. . . .”  More importantly, Virginia law caps the amount of money that a person can receive as a result of a doctor’s negligence (medical malpractice), no matter how badly the person is hurt.  So one of the reasons for the dispute in Simpson v. Roberts was whether this cap applied to Marissa’s claim.  In some prior cases the court had decided, one of the issues is whether the mother and fetus count as one (so one cap covers both their injuries) or two (and thus, twice the cap).  Simpson says that if the fetus lives to be born, the individual cap applies to the child’s claim.

Although the majority opinion settles the Simpson dispute, the tense shift creates a disconnect in how medical malpractice claims are proven in court.  The issue, highlighted by Justice McClanahan in his concurring opinion, is that typically the doctor-patient relationship has to exist at the same time as the wrongful act occurs.  In typical medical malpractice cases, an injured person must first prove that the doctor had a duty to the injured person (e.g. that a doctor-patient relationship has been created).  After proving that the doctor had a duty, the injured person next proves that the doctor did something wrong (e.g. breached the standard of care) while the doctor-patient relationship existed.  The Simpson opinion indicates that, at least for injury caused to fetuses, the duty and injury don’t need to exist at the same time.

I suspect that this will create some interesting issues in the future.  I think the overall outcome of the Simpson case aligns with my instinct about how the law works.  But it took some unique logic to reach the result.  If the doctor-patient privilege is only imputed to exist well after the fact, could this cause bizarre results?  I won’t hazard a guess today, but the legal status of fetuses will continue to receive a lot of close scrutiny and strong opinions.  The Supreme Court of Virginia will probably revisit the issue in the Simpson case again in the future.

Please read my disclaimer.